Rogers & Norton News

Disability and other ailments

Monday, September 16, 2013

Commissioners for HMRC v Whiteley

Disability raises all sorts of complex workplace issues, and the Employment Appeal Tribunal (EAT) has just taken a look at one of these. What should an employer do when an employee is absent because of a combination of their disability and other ailments?

Ms Whiteley had asthma. It was a disability made worse by respiratory infections which made her absent from work. HMRC’s sickness policy said that an employee who was off work through illness for 10 days or more could be disciplined. Ms Whiteley challenged that policy, saying that it put her at a disadvantage and that HMRC had failed to make reasonable adjustments.

So what should an employer do when disability interacts with other ailments? The EAT has given some guidance, and it involves taking one of two courses of action. Either:

  • carefully consider (with expert evidence) the periods of absence, and try to analyse which were because of the disability and which were not; or

  • use proper information to work out what sort of periods of absence the employee would reasonably be expected to take over the course of an average year because of their disability.

Nobody is suggesting that either is an easy task, but get this right and you’ll have done the reasonable thing.